Opinion 20-212

January 28, 2021

Digest:     A full-time judge may not serve on the advisory board of the Center for Court Innovation, given that the Center regularly provides program alternatives to detention and incarceration for criminal defendants.

Rules:       22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 20-55; 20-03; 19-122; 19-105; 19-36; 19-30; 13-12; 09-147; 07-02; 06-83; 00-101/00-104; 98-02; 96-84; 95-150.

Opinion:

         A judge-elect asks if they may serve on the advisory board of the Center for Court Innovation (the Center) after assuming full-time judicial office. The judge expects to serve in a civil part, hearing primarily matrimonial matters. The Center was originally established as a public/private partnership between the Fund for the City of New York and the Unified Court System, but is now transitioning to a 501(c)(3) not-for-profit organization. The Center conducts research, provides technical assistance and administers program alternatives to incarceration and detention for criminal justice involved individuals. The Center administers a number of programs throughout the state’s problem-solving courts,¹ criminal courts (supervised release, Brooklyn Justice Initiative, Bronx Community Solutions, restorative justice program, Driver Accountability Program, Manhattan Justice Opportunities, Project Reset), family courts (Westchester Court Education Initiative, Strong Starts Court Initiative, Parent Support Program) and housing courts (Poverty Justice Solutions, housing resource centers). The advisory board’s function is to provide guidance as the Center undergoes the transition and to leverage its members’ experience to increase the Center’s overall visibility and involvement with issues it is currently engaged in.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge generally may serve as “an officer, director, trustee or non-legal advisor” of an organization devoted to the improvement of the law, the legal system or the administration of justice or of a not-for-profit charitable or civic organization (22 NYCRR 100.4[C][3]). However, a judge may not so serve if the entity will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) or, in the case of a full-time judge, is likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).

         Pursuant to Section 100.4(C)(3)(a)(i), which applies to all judges, we have said a full-time judge may not serve on the board of an entity that is likely to be engaged in proceedings that would ordinarily come before the judge (see Opinions 06-83 [IDV judge may not serve on board of entity that provides representation and is a courtroom advocate for domestic violence victims]; 13-12 [family court judge may not serve on board of entity with a children’s rights division since it advocates for children’s rights issues that would come before the judge]). Thus, a full-time judge may not serve on the board of an entity that is eligible for referrals from the judge’s court (compare Opinions 20-55 [surrogate’s court judge may not serve on the board of entity that provides advocacy and services for individuals with disabilities, where the entity would be eligible for guardianship appointments through that court]; 07-02 [family court judge may not serve on board of entity that provides mental health services to families and is eligible for referrals by that court] with Opinion 19-105 [full-time city court judge may serve on board of non-profit organization that promotes implementation of evidence-based practices to support health and education of children, where the organization is not eligible for referrals from the City Court]).

         Here, as the judge expects to preside in matrimonial matters, it appears that none of the programs administered by the Center would be eligible for referrals from the judge’s court. Nor would the Center, its mission, or participants in the Center’s programs likely appear before the judge. Accordingly, Section 100.4(C)(3)(a)(i) is not a bar.

         However, full-time judges who wish to serve as an officer, director, or non-legal advisor of an entity are also subject to Section 100.4(C)(3)(a)(ii). Thus, a full-time judge may not serve if the entity is “engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii] [emphasis added]). In general, we interpret the phrase “engaged regularly” to mean either multiple proceedings or a long, drawn-out proceeding involving issues that may be of a controversial nature (see Opinion 20-03 [regional Boy Scouts Council is engaged regularly in adversary proceedings, where a member of its executive committee was charged with multiple criminal offenses and the organization was named as a defendant in several cases under the Child Victims Act]; compare Opinions 19-30 [land trust conservancy will be a participant in contested administrative proceedings involving issues of local controversy; impermissible for full-time judge]; 19-36 [not-for-profit credit union is regularly involved in foreclosure and bankruptcy actions; impermissible for full-time judge] with Opinion 98-02 [full-time judge may serve on board of non-profit overseeing ownership and maintenance of residential cottages which may be involved in a single non-controversial proceeding]). Likewise, a full-time judge may not serve on the advisory board of a not-for-profit organization that provides attorney representation (see Opinion 19-122 [entity provides representation in court proceedings as lawyer or guardian]) or legal services including litigation assistance or training (see Opinion 96-84 [entity provides free legal services for low-income area residents]).

         Further, we have said full-time judges must not serve on the advisory board of an entity that offers alternatives to incarceration (compare Opinions 95-150 [entity provides ATI services and “takes positions concerning defendants”; impermissible for full-time judge]; 00-101/00-104 [entity provides “criminal offense sentencing alternatives” and alternatives in “probation violation sentencing matters”; impermissible for full-time judge] with Opinion 09-147 [entity offers a restorative justice program as a diversion from a traditional prosecution by the consent of all the parties, akin to mediation, as an alternative to incarceration; permissible for full-time judge]).

         Here, the Center regularly provides services to criminal defendants as an alternative to detention or incarceration. Typically, the court and defense counsel and/or the prosecutor request the Center’s involvement in an alternative to detention or incarceration program. The Center’s services include case management for individual defendants; in such instances, the defendants are assessed for a variety of needs and the Center makes those referrals. While the Center’s representatives do not necessarily seek or advocate for a specific disposition in any given case, they do recommend treatment modalities as a component of a disposition. Should their recommendations be accepted by the parties, the Center reports to a court on the defendant’s compliance with the conditions set by the court. Based on this description of the Center’s programs and the services it provides in criminal proceedings, we conclude the Center is engaged regularly in adversary proceedings in certain courts, as we have previously interpreted that phrase. Accordingly, a full-time judge may not serve as an officer, trustee, or non-legal advisor of the Center and thus may not serve on the Center’s advisory board.

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¹ Problem-solving courts include the drug treatment courts, integrated domestic violence courts, human trafficking intervention courts, and mental health courts.